Jury begins deliberations in legal malpractice lawsuit

The Federal Deposit Insurance Corp.'s legal malpractice case against prominent Sarasota real estate attorney Robert Messick and his law firm went to the jury for deliberations late Tuesday morning.

Attorneys representing the FDIC, Messick and the law firm Icard Merrill each spent nearly an hour presenting their closing arguments, capping seven days of testimony.

Messick's defense team reiterated that the FDIC was wrong in its depiction of a $5.3 million loan issued by First Priority Bank to a developer whom Messick represented.

The agency claimed the bank failed to properly evaluate a planned housing community securing the loan and that Messick failed to inform the bank that 25 acres of additional collateral did not exist.

The agency asked the jury to punish Messick and the firm for their roles in the loan, which went into default 18 months after it was made. The FDIC is seeking $4.6 million in damages from Messick and Icard Merrill.

“You need to send a message,” FDIC attorney Al Perez told the jury. “We can't have people who practice law in our community acting this way.”

Acting as receiver for First Priority, which became one of the first Florida lenders to fail during the Great Recession, the FDIC has based its case against Messick almost entirely on official banking documents recovered after the Bradenton lender collapsed.

The agency filed suit against Messick and Icard Merrill, among the most respected law firms in Southwest Florida, alleging malpractice and breach of fiduciary duty.

Messick, who provided legal counsel to the bank in the $5.3 million loan, also represented the borrower and a secondary lender who stood to benefit if the First Priority loan went through.

The FDIC contends that representing three parties to the deal meant Messick had a conflict of interest, preventing him from giving First Priority proper legal direction.

“He had the most intimate knowledge of anybody involved in the deal on what was going on,” Perez said. “Yet he didn't follow directions for the bank, and that's because Mr. Messick represented everyone on the planet.”

But Dennis Waggoner, a Tampa attorney representing Messick and Icard Merrill, argued that several witnesses involved with the loan contradicted the FDIC's allegations.

Waggoner reminded the jury that bank executives and Messick testified that the bank released Messick from any conflict of interest concerns when the attorney informed them of his multiple roles in the proposed River Meadows deal.

Each also testified that whether the deal included an option on an additional 25-acre parcel had no bearing on their decision to issue the loan to developer and Messick client Mark Brivik.

Waggoner noted that the FDIC, which has the burden of proof in the case, failed to present a single witness during the trail who countered the testimony by bank officials and Messick.

He reiterated a position he took in his opening statements that the FDIC's analysis of the documents in the case was greatly flawed.

“Every one of the people brought in who worked at the bank at the time the loan was made told you the FDIC's claim is wrong,” Waggoner said. “This lawsuit should have never been filed.

“Not one human being with personal knowledge could walk into this courtroom and say the bank would not make the loan without the 25 acres,” he added.

“That's the heart of the FDIC's claim, and they failed to prove it.”

The jury, which began its discussions shortly before noon, is expected to continue deliberating today .

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